At the end of the Civil War, Lambdin P. Milligan, a United States citizen, was arrested in his Indiana home, tried before a military commission, and sentenced to death on a number of charges including “[a]ffording aid and comfort to rebels against the authority of the United States”. Ex parte Milligan, 71 U.S. 2, 6 (1866). Milligan petitioned for a writ of habeas corpus and the case went all the way to the Supreme Court. The Supreme Court held that the military commission had no jurisdiction to try or sentence Milligan. Even in a time of war, Milligan was entitled to his due process rights under the Fifth Amendment of the U.S. Constitution. Nearly 150 years later, the U.S. finds itself embroiled in another time of war. Advances in military technology such as drones have greatly enhanced the government’s ability to conduct lethal operations anywhere in the world without ever having to put a single American soldier on the ground. Paradoxically, it is exactly these new advances in military technology that have dredged up a longstanding, yet important conflict between balancing national security with constitutional protections of due process.

The conflict between national security and due process recently regained national attention with the leaking of a Department of Justice White Paper. The White Paper detailed the legal framework under which the government can lawfully order lethal operations against a United States citizen who is outside a recognized battlefield and believed to be a “senior operational leader” or an “associated force” of al-Qa’ida. It concluded that when an informed high-level U.S. official determines that (1) a U.S. citizen poses an “imminent threat” of violent attack, (2) capture of the citizen is infeasible, and (3) the operation can be conducted consistently with law of war principles, lethal force does not violate international or domestic law. The White Paper expressed the latest of a long series of arguments put forth by the Obama Administration justifying its practice of requiring minimal due process procedures before taking lethal action against U.S. citizens far from the combat zone. In fact, as early as 2010, Harold Koh, Legal Advisor to the U.S. State Department, stated that a nation “engaged in an armed conflict or legitimate self-defense is not required to provide targets with legal process before the state may use lethal force…” In 2012, Attorney General Eric Holder in his address at Northwestern University declared that the President is not required to go through a federal court in order to take action, “The Constitution guarantees due process, not judicial process.” What is most striking about the Obama Administration’s collective arguments is the wide discretion afforded to the Executive Branch and the inchoate analysis of the constitutional expectations due process requires from each branch of government.

There are two components of due process: fair notice and the opportunity to be heard. The fundamental rationale behind due process is to check against arbitrary government action. At its core, due process is an amalgamation of what makes the separation of powers a powerful American ideal. The Legislative branch writes the laws—including the ones that dictate charges available against U.S. citizens—that the Executive branch enforces by bringing citizens in violation of the law to be tried before an impartial Judicial branch that the Constitution itself or the Legislative branch has established. Times of national crisis will necessarily render some procedures of due process more elastic than times of peace. Indeed, the Supreme Court has recognized that in certain cases the procedures for due process must be narrowed in times of national crisis. For example, in Ex ParteQuirin, during World War II, the Court upheld the constitutionality of trying a U.S. citizen for offenses against the laws of war in front of a military commission rather than a jury. See Ex parte Quirin, 317 U.S. 1 modified sub nom. U.S. ex rel. Quirin v. Cox, 63 S. Ct. 22 (U.S. 1942). At the same time, the Court has also recognized that “[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).

The Hamdi opinion, which the DOJ White Paper cited, also recognized the need to balance the constitutional guarantee of due process with the Executive branch’s responsibility to keep the nation secure. Thus, in evaluating the constitutional protections afforded a U.S. citizen captured and deemed an “enemy combatant” by the U.S. military, the Hamdi Court used a balancing test that it had employed 28 years prior in Mathews v. Eldridge. The Mathews Court stated that the proper test for evaluating how much due process is required is the consideration of three factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest…”.Mathews v. Eldridge, 424 U.S. 319 (1976). The DOJ White Paper conceded that “no private interest is more substantial” than the interest in avoiding erroneous deprivation of life. White Paper at 6. However, the DOJ reasoned that the government interest in ensuring national security by using force on those that pose an “imminent threat of violent attack” is compelling. As such, the DOJ concluded that the “realities of combat” justified the force rendered necessary to meet those realities. In fact, the DOJ White Paper quoted the Hamdi decision, “due process analysis need not blink at those realities.” Hamdi, 542 U.S at 531. However, this use of Hamdi is disingenuous. The “realities” the Court referred to were the necessities of detaining enemy combatants rather than the use of force.[1]

The DOJ White Paper’s use of Hamdi to justify drone strikes outside recognized combat zones is increasingly suspect due to the fact that Hamdi emphasized that petitioner Hamdi was captured in a foreign combat zone. In doing so, Hamdi refered to Ex Parte Milligan, the aforementioned Supreme Court case regarding the constitutionality of military commissions during the Civil War. The Milligan Court held that despite being in a time of declared war, the military commission had no jurisdiction to try and sentence Milligan. The Hamdi Court reasoned “[h]ad Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different”. Hamdi, 542 U.S. at 522. Indeed, the Milligan Court pointed to the fact that in Indiana “…there was no hostile foot…[and] so in the case of a foreign invasion, martial rule may become a necessity in one state, when in another, it would be “mere lawless violence.” Milligan, 71 U.S. 2 at 126-27. The Court in both Hamdi and Milligan implicitly acknowledged the importance of recognized combat zones as a potential check on the Executive branch’s expansive war powers.

Perhaps part of the reason the Hamdi Court emphasized the fact that Hamdi was captured in Afghanistan involves the due process requirement of fair notice. After all, to be in an internationally recognized battle zone such as Afghanistan can constitute sufficient notice as to the hazards and “realities of combat”. As Professor Noah Feldman wrote in his blog post, Obama’s Drone Attack on Your Due Process, “The White Paper should have said that due process doesn’t apply on the battlefield.” However, the DOJ White Paper’s analysis is not focused on the legality of drone strikes on the battlefield. It justifies drone strikes outside an area of active hostilities. White Paper at 1. Under the DOJ’s analysis, U.S. citizens in countries that the President, Congress, or even the United Nations Security Council has not officially authorized military engagements with are open to drone strikes. Of course, one could argue that Congress authorized the use of force against terrorists and thus, being a terrorist against the U.S. is notice enough. However, this is a rather tautological argument. After all, how does the government determine a U.S. citizen is a terrorist without providing the citizen a meaningful opportunity to be heard before issuing a drone strike?

The Obama Administration has consistently justified its broad exercise of military powers by pointing out that it is executing what Congress has authorized it to do. Congress’ 2001 Authorization of Military Force “authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Authorization for Use of Military Force, Pub. L. No. 107-40 (2001). The DOJ White Paper notes that Congress did not put geographical limits on this authorization.

Further, the DOJ White Paper stipulated that once a U.S. citizen is deemed an “imminent threat,” the use of lethal force becomes a legitimate act of self-defense. However, the DOJ White Paper’s definition of “imminent threat” is alarmingly broad. According to the White Paper, imminent threat does not require “clear evidence that a specific attack on U.S. persons…will take place in the immediate future”. White Paper at 7. The DOJ concluded that if the targeted individual is continually involved with planned attacks and there is no evidence suggesting “that he has renounced or abandoned such activities”, the U.S. official could make a determination of “imminent threat.” White Paper at 8. The White Paper leaves unresolved the criteria or timeline as to how and when those assessments are made. It is also unclear which officers of the U.S. military are “informed” and “high-level” enough to make such an assessment. “[W]ithout doubt, our Constitution recognizes that core strategic matters of war belong in the hands of those who are best positioned and most politically accountable for making them.” Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004). However, just how far up or down the chain of command can the assessment of “imminent threat” be made? If the principle behind due process is government accountability, how accountable can we hold those in charge of making the assessment? Are the current Obama Administration practices the ones that properly minimize erroneous risk of deprivation of life?

Certainly, terrorism is a global threat not limited to traditional geographic notions of the battlefield. The DOJ White Paper is a reflection of these modern conditions of warfare. Indeed, the forefathers of the Constitution and the Milligan Court could not have foreseen or fathomed the amorphous, global nature of today’s threats posed to the United States of America. However, as the Hamdi Court plurality wrote, “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens…” The Constitution demands that more than one branch of government balances the scales of due process in its hands. The core of due process requires that our branches of government hold each other accountable precisely to decrease the risk of erroneous deprivation of a U.S. citizen’s life. After all, while Article II of the Constitution names the President “commander in chief”, Article I grants Congress the authority to “declare war…and make rules concerning captures on land and water…” and Article III puts acts of treason within the jurisdiction of the judiciary. Thus, there is still a role for both the courts and Congress to play in the realm of military technology and constitutional guarantees. Congress should seek to more concretely define the concept of “imminent threat”. It should also seek to clarify the protocol on using force against U.S. citizens outside the combat zone. This is not to say that Congress should necessarily limit the Executive’s power to use force outside Afghanistan. However, it should seek to more clearly define the policy concerns for U.S. citizens outside traditional battlefields. For example, if a U.S. citizen is outside Afghanistan, should more efforts be made to capture? The Executive Branch can then execute the law with a more definite strategy that has Congress’ blessing. As for the judiciary, while the courts should not undertake to form military policy, when called upon the courts should evaluate the criteria used through the lens of the Mathews balancing test as well as the measure of Congress’ authorization of power to the Executive.

As more and more information regarding drone use is provided to Congress and the public, all citizens should keep in mind that the entire world is not a combat zone and U.S. military practices toward its citizens should not imply this scenario. On the other hand, the Executive should be enabled to use advances in military technology to secure the nation against the global nature of terrorism. However, due process does require that no one branch maintain unilateral authority over a U.S. citizen’s life, liberty, or property. Due process can and does require the Executive, Congress, and the courts to work in concert toward accountability and the pursuit of a more perfect union.

[1]Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004) (“. . .[T]he law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities.”).